Madras High Court
N. Ponnambalam vs Union Of India (Uoi), Rep. By Union Of ... on 28 January, 2002
JUDGMENT
1. The aggrieved plaintiff in A.S.72, 132 and 137 of 1999 on the file of District Judge at Pondicherry has preferred the present appeals aggrieved against the judgment and Decree dated 30.03.2001 remanding the matter to the trial court, namely, Principal District Munsif Court, Pondicherry for retrial.
2. The case in brief is as follows:- The plaintiff filed a suit for declaration that he is the absolute owner of the suit property and also for permanent injunction restraining defendants 5 and 6 from interfering with the suit property. It originally belonged to one Thalayari Velayudham, from whom his son Ponnappa Gounder inherited the property. Ponnappa Gounder had two sons, namely, Chinnathambi Gounder and Subbarayan and as Subbarayan died issueless, the suit property was inherited by Chinnathambi Gounder. He mortgaged the property in favour of Ramarathinam Pillai on 29.06.1895, but the mortgage got extinguished because of lapse of time and the mortgagee also failed to take steps to recover the money. Chinnathambi Gounder became the absolute owner of the property and he contributed a portion of income to maintain the Arulmigu Mariamman Koil situate at Pudhupettai in Paimash No.3149, Cadastre No.966 to 968 and R.S.No.92/3. On the death of Chinnathambi Gounder, Natesa Gounder succeeded to the property. Natesa Gounder had 2 sons, namely, the plaintiff and one Subburathinam. By virtue of the release deed executed by Subburathinam, the plaintiff became the absolute owner of the property. Thereafter, the plaintiff filed O.S.No.308 of 1981 on the file of Additional Sub Court, Pondicherry for permanent injunction against one Rajarathinam and 4 others and the suit was decreed. The appeal No.181 of 1985 was allowed and the matter was remanded back to the trial court and finally the suit was decreed on 22.09.1989 declaring the plaintiff as the legal heir and the successor-in-interest to the estate of Chinnathambi Gounder.
3. The 5th defendant filed a suit in O.S.358 of 1991 before II Additional District Munsif Court, Pondicherry against the 6th defendant for permanent injunction in respect of the suit property and on coming to know, the plaintiff filed I.A.5439 of 1991 to implead him as a party and as it was dismissed, he filed CRP No.1505 of 1992 and it was also dismissed on 05.07.1992 granting liberty to file a civil suit to establish his right over the property. When the plaintiff applied for patta in respect of the property, he came to know about the issue of patta in the name of the 5th defendant. The 5th defendant taking advantage of the mistake in the patta issued by defendants 3 and 4, he is claiming right over the property. Further, the decision in O.S.358 of 1991 is also not binding on him. Since the 5th defendant is trying to alienate the property, the suit was laid.
4. The 3rd defendant filed a written statement adopted by defendants 1, 2, 4 and 7. Joint patta was issued in favour of the temple and others. The plaintiff is not in any way connected with the suit property and, as such, he is not entitled to claim any property.
5. Defendants 5 and 6 filed separate written statements contending that the genealogy and succession to the property as alleged in the plaint are denied. The 5th defendant is in continuous possession and enjoyment of the property for more than 100 years and the plaintiff is also bound by the judgment in O.S.358 of 1991. The suit is also barred by limitation. According to the 6th defendant, the suit property belongs to the temple, which is a notified religious institution under the Pondicherry Hindu Religious Institution Act 1970 and the pedigree of the plaintiff and maintenance of the temple from out of the income from the suit property are false. On the application by the 6th defendant and on due enquiry, the mistake in granting patta was corrected and joint patta was issued in the name of the temple.
6. The trial court framed 5 issues and on behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A-1 to A-20 were marked. On the side of the defendants, D.Ws.1 to 6 were examined and Exs.B-1 to B-20 were marked. 2 documents were marked as Court exhibits X-1 and X-2. The trial court decreed the suit in part and the claim of the plaintiff in respect of cadastre No.966 and 967 was upheld and granted the relief of declaration and injunction and in respect of cadastreNo.968, the plaintiff was directed to move the competent authorities under the Pondicherry Settlement Act in accordance with Section 23 of the Act to rectify the mistake, if any, by establishing his title. Aggrieved against the judgment and decree of the trial court, the 6th defendant preferred A.S.72 of 1999, the plaintiff preferred A.S.132 of 1999 and the 5th defendant preferred A.S.137 of 1999 before the Additional District Court, Pondicherry. The learned Judge after hearing the parties, passed a common judgment allowing the appeals, set aside the judgment and decree of the trial court in O.S.No.232 of 1993 and the suit was remanded back to the trial court under Order 41 Rule 23-A of Civil Procedure Code. It further directed that the trial court shall readmit the suit under its original number, frame additional issues as to the genealogy claimed by the plaintiff and identity of the suit property as observed and after giving opportunity to both sides, to lead further evidence, dispose of the case within three months. Aggrieved against the order of remand only, the plaintiff has come forward with these appeals.
7. Heard the learned counsel for the parties.
8. The points that arise for consideration in these appeals (1) Whether the order of remand passed by the lower appellate court is proper and correct? ((2) Whether the provisions of Order 41 CPC have been duly complied with by the lower appellate court? and (3) To what relief?
9. Points: There is no dispute that the suit property comprised in paimash No. 3149, cadestre No.966 to 968 and Resurvey No.92/3. It is the specific case of the plaintiff that the property originally belonged to one Thalayari Velayudham and later his son Ponnappa Gounder inherited the property. Ponnappa Gounder had 2 sons, namely, Chinnathambi Gounder and Subbarayan and as Subbarayan died issueless, the suit property was inherited by Chinnathambi Gounder. Although Chinnathambi Gounder mortgaged the property in favour of a third party under a simple mortgage on 29.06.1895, as he failed to take steps to recover the money due under the mortgage, it got extinguished and Chinnathambi Gounder became the absolute owner of the property. On the death of Chinnathambi Gounder, his son Natesa Gounder succeeded to the property, who had 2 sons, namely, the plaintiff and Subburathinam. By virtue of the release deed executed by Subburathinam, the plaintiff became the absolute owner of the property.
10. The genealogy has been filed in the plaint itself. The trial court on the basis of the evidence and the documents, decreed the suit in part relating to cadastre No.966 and 967 only and, however, directed the plaintiff to approach the competent authorities under section 23 of the Pondicherry Settlement Act relating to cadastre No.968. It is necessary to state that the plaintiff as well as defendants 5 and 6 were aggrieved by the order of the trial court which necessitated the filing of three appeals before the lower appellate court. Now, the lower appellate court after hearing the parties came to the conclusion that each and every branch of genealogy was disputed by defendants 5 and 6 in their written statements and it has not been properly proved. The lower appellate court also adverted that no specific issue has been framed by the trial court as to whether the genealogy stated by the plaintiff is true. The Court also observed that only when the plaintiff is able to prove the genealogy, then only he can succeed in the suit. Similarly, according to the plaintiff, the suit property was allotted to paimash No.3149 and the Settlement Officer after enquiry, ordered joint patta in the name of the temple along with others to an extent of 40 ares correlating to cadestre No.966 to 968. Defendants 1 to 4 did not accept that paimash No.3149 was allotted to cadestre No.966 to 968. Further more, the property covered under the mortgage deed dated 29.06.1895 is not the property comprised in paimash No.3149 correlating to cadestre No.966 to 968 has not been proved and as such, necessary additional issue has to be framed as to the genealogy claimed by the plaintiff and identity of the suit property with reference to the mortgage deed and because of this only, the order of remand was passed.
11. Learned counsel for the appellant / plaintiff contended that the plaintiff had already filed Exs.A-1 and A-2 to prove the family genealogical tree. It is an undisputed fact that the said Chinnathambi Gounder was the grandfather of the plaintiff / appellant. There is only a vague denial by defendants 5 and 6 in the written statement. Moreover, the plaintiff had already filed a suit claiming right in the property representing the branch of Chinnathamabi Gounder and obtained a decree in his favour. The appellant had also filed Ex.A-21 and A-22, which have been notorised. These documents are more than 30 years old. Exs.A-1 to A-22 will conclusively prove the title to the property and the plaintiff is the absolute owner. The stray entries made in the Settlement Register during re-survey will not create any cloud over the title to the property. The appellate court also ought to have raised an adverse inference against defendants 5 and 6. The appellant had also produced the encumbrance certificate to prove the correlation to the paimash number. Moreover, the parties to the suit have let in evidence on all aspects and no effort was made by defendants 5 and 6 to raise additional issues. Moreover, the order of remand will go against the letter and spirit of Order 41 Rule 23-A of Civil Procedure Code. The first appellate court's order setting aside the judgment of the trial court lacks application of mind.
12. Learned counsel for the appellant also relied on the decision reported in KAMESWARAMMA ..vs.. SUBBA RAO , wherein it was observed as follows:-
"Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer".
This decision is applicable to the case on hand.
13. Reliance is also placed in MD.UMARSAHEB ..vs.. KADALASKAR relating to an election petition, wherein it was contended that "issues framed confusing and misleading. Appellant, however, knew exactly what points he had to meet and had contradicted evidence adduced petitioner - Because of unsatisfactory nature of issues, whole trial held not vitiated". The analogy in this decision can be made applicable to the case on hand.
14. However, the learned counsel for the respondents contended that perusal of the decree in Clause 4 of the lower appellate court itself will indicate that the remand was made only for framing additional issues as to the genealogy claimed by the plaintiff and identity of the suit property, as observed in the judgment and after giving opportunity to both sides to lead further evidence, if any, on the additional issues, proceed to dispose of the suit according to law. Now, it is stated that there is no scope to lead any additional evidence. So far as the genealogy is concerned, it has been clearly stated by the plaintiff even in the plaint and has also let in evidence and apart from that, in the earlier proceedings also such a plea has been taken and accepted by a court of law. Simply because a vague plea is now raised by the contesting defendants, the remand is unnecessary. No new materials have been projected by the contesting defendants. Apart from that, the mortgage relied on by the appellant was only a simple mortgage and it is not necessary to go into the question whether the property covered under the simple mortgage also relate to the suit property or not. In my view, the remand made by the lower appellate court is not proper and correct. As adverted to, the plaintiff himself already filed one suit and similarly the 5th defendant also filed one suit and both of them claimed that it is the same property. Whatever it may be, there is overwhelming evidence of oral and documentary and by which, the lower appellate court can come to a conclusion whether the plaintiff is entitled to get the relief asked for.
15. It is seen from the judgment of the lower appellate court that the finding in respect of cadestre No.968 given by the trial court was set aside. The trial court has directed the plaintiff to approach the Settlement Authorities under section 23 of the Act relating to granting of patta. It is settled position of law that the Civil Court has got jurisdiction to go into the question as to who is entitled to get patta. Under the circumstance, it is not necessary that the plaintiff should be driven to the settlement authorities relating to cadestre No.968. As such, the reversal of the finding in respect of cadestre No.968 by the lower appellate court is proper and correct. Perusal of the judgment of the trial court itself indicates that the parties have gone into the box knowing fully well about the genealogy putforward by the plaintiff as well as the simple mortgage. When the parties have let in sufficient evidence knowing fully well about the rival contentions, the remand made by the lower appellate court is unwarranted. I am of the view that the lower appellate court had failed to consider the salient provisions under which only the order of remand can be made. Hence, the order of remand made by the lower appellate court is not based on sound reasons and, liable to be interfered with. Hence, the points are answered accordingly.
16. For the reasons stated above, all the appeals are allowed and the judgment and decree of the lower appellate court is set aside and the lower appellate court is directed to restore Appeal Suits No.72, 132 and 137 of 1999 on its file and dispose of all the three appeals after hearing the parties in accordance with law as early as possible, not exceeding three months from the date of receipt of a copy of this judgment. However, there will be no order as to costs. Consequently, CMP No.9616 of 2001 is closed.